UNITED STATES’ MEMORANDUM OF LAW IN SUPPORT OF THE CONSTITUTIONALITY OF THE AMERICANS WITH DISABILITIES ACT TABLE OF CONTENTS

TITLE II OF THE AMERICANS WITH DISABILITIES ACT IS A VALID EXERCISE OF CONGRESS’S POWER UNDER SECTION 5 OF THE FOURTEENTH AMENDMENT...3 A.. Following trial on the merits and the submissi

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MARYLAND

)

GARY E WILLIAMS, et al., )

)Plaintiffs, )

)

)MARTIN WASSERMAN, et al., )

)Defendants ) )

UNITED STATES’ MEMORANDUM OF LAW

IN SUPPORT OF THE CONSTITUTIONALITY OF THE

AMERICANS WITH DISABILITIES ACT

TABLE OF CONTENTS

PAGE

INTRODUCTION 1SUMMARY OF ARGUMENT 3ARGUMENT:

I TITLE II OF THE AMERICANS WITH DISABILITIES ACT IS A

VALID EXERCISE OF CONGRESS’S POWER UNDER SECTION 5 OF THE FOURTEENTH AMENDMENT 3

A The ADA Is An Enactment To Enforce The

Equal Protection Clause 6

B The ADA Is Plainly Adapted To Enforcing

The Equal Protection Clause 10

1 Congress Found That Discrimination

Against People With DisabilitiesWas Severe And Extended To EveryAspect Of Society 11

2 The ADA Is A Proportionate Response

By Congress To Remedy And Prevent The Pervasive Discrimination It Discovered 14

3 In Enacting The ADA, Congress Was

Redressing Constitutionally CognizableInjuries 15

4 Unlike The Statute Found

Unconstitutional In City Of Boerne,The ADA Is A Remedial And PreventiveScheme Proportional To The Injury 20

II TITLE II OF THE AMERICANS WITH DISABILITIES ACT IS A

VALID EXERCISE OF CONGRESS’S POWER UNDER THE COMMERCE CLAUSE 27

A Congress Had A Rational Basis For Concluding That

Discrimination Against the Disabled, Including As Proscribed By Title II Of The ADA, Substantially Affects Interstate Commerce 28

1 Congress Possesses Broad Powers Under The

Commerce Clause To Enact Civil Rights Legislation 28

2 The Statutory Findings and Legislative

History Of The ADA Make Clear That Discrimination Against Persons With Disabilities Affects Interstate Commerce 33

3 Congress’s Reliance On Its Commerce Clause

Powers In Enacting Title II Of The ADA Is Consistent With The Lopez Decision 35

B Congress Had A Rational Basis For Concluding That

Unnecessarily Segregating Disabled Persons In Public Institutions, And Thereby Failing To Administer Services, Programs, And Activities For Such Persons In The Most Integrated Setting

Appropriate, Substantially Affects Interstate Commerce 37

1 Once Congress Concludes That An Activity

Substantially Affects Interstate Commerce, It

Is Not Required To Establish An Interstate Nexus For Every Possible Application Of The Statute 37

2 Even If Congress Were Required To Establish

That The ADA, As Applied In This Case, Substantially Affects Interstate Commerce, It

Is Apparent That Congress Had A Rational Basis For Reaching That Conclusion 39

C Congress’s Commerce Clause Power In Enacting Title

II Of The ADA Is Not Constrained By The Tenth Amendment 42CONCLUSION 46

ii

TABLE OF AUTHORITIES CASES:

Abril v Virginia, 145 F.3d 182 (4th Cir 1998) 5Alexander v Choate, 469 U.S 287 (1985) 14Amos v Maryland Dep’t of Safety and Correctional Servs.,

126 F.3d 589 (4th Cir 1997) 3Arritt v Grisell, 567 F.2d 1267 (4th Cir 1977) 9Bangerter v Orem City Corp., 46 F.3d 1503

(10th Cir 1995) 24Bankers Life & Cas Co V Crenshaw, 486 U.S 71 (1988) 8Bledsoe v Palm Beach Soil & Water Conserv District, 133 F.3d

816 (11th Cir.), cert denied, 119 S Ct 72 (1998) 32Board of Educ V Rowley, 458 U.S 176 (1982) 9Brown v North Carolina Div Of Motor Vehicles, 987 F Supp 451

(E.D.N.C 1997), appeal pending, No 97-2784 (4th Cir.) 3

Brzonkala v Virginia Polytechnic Institute and State Univ,

132 F.3d 949 (4th Cir 1997), vacated for reh’g en banc (Feb 5, 1998) 36, 38City of Boerne v Flores, 117 S Ct 2157 (1997) passim

City of Cleburne v Cleburne Living Ctr.,

473 U.S 432 (1985) passimCity of Rome v United States, 446 U.S 156 (1980) 25

Clark v California, 123 F.3d 1267 (9th Cir 1997),

cert denied, 118 S Ct 2340 (1998) 4,9,26Coger v Board of Regents, No 97-5134, 1998 WL

476164 (6th Cir Aug 17, 1998) 9Condon v Reno, 155 F.3d 453 (4th Cir 1998) 43,45Coolbaugh v Louisiana, 136 F.3d 430 (5th Cir.),

cert denied, 119 S Ct 58 (Oct 5, 1998) 4,23,26Counsel v Dow, 849 F.2d 731 (2d Cir.), cert denied,

488 U.S 955 (1988) 9

iii

CASES (continued):

Crawford v Indiana Dep’t of Corrections, 115 F.3d 481

(7th Cir 1997), cert denied, 118 S Ct 2340

(1998) 4,9,26Crawford v Pittman, 708 F.2d 1028 (5th Cir 1983) 10David D v Dartmouth Sch Comm., 775 F.2d 411

(1st Cir 1985), cert denied, 475 U.S 1140

(1986) 9

Doe v University of Md Med System Corp., 50 F.3d 1261

(4th Cir 1995) 14EEOC v Wyoming, 460 U.S 226 (1983) 5,27,28,43Employment Div v Smith, 494 U.S 872 (1990) 20,21

Ex parte Virginia, 100 U.S 339 (1879) 4Fitzpatrick v Bitzer, 427 U.S 445 (1976) 5,31Fry v United States, 421 U.S 542 (1975) 29,38Fullilove v Klutznick, 448 U.S 448 (1980) 14,25,30

Garcia v San Antonio Metro Transit Auth., 469 U.S 528

(1985) 42,43,45Goshtasby v Board of Trustees, 141 F.3d 761

(7th Cir 1998) 9Grano v Department of Dev., 637 F.2d 1073 (6th Cir 1980) 25Griffin v Illinois, 351 U.S 12 (1956) 19

Heart of Atlanta Motel, Inc v United States,

379 U.S 241 (1964) 30,31Helen L v DiDario, 46 F.3d 325 (3d Cir 1994) 1

Hodel v Virginia Surface Mining & Reclamation Ass’n,

452 U.S 264 (1981) 28,29Jenness v Fortson, 403 U.S 431 (1971) 19

Kathleen S v Dep’t Of Public Welfare,

10 F Supp 2d 460 (E.D Pa 1998) 40Katzenbach v McClung, 379 U.S 294 (1964) passim

iv

CASES (continued):

Katzenbach v Morgan, 384 U.S 641 (1966) 5

Keeton v University of Nev Sys., No 97-17184, 1998 WL 381432 (9th Cir July 10, 1998) 9

Kimel v Board Of Regents, 139 F.3d 1426 (11th Cir 1998) 4,26 L.C by Zimring v Olmstead, 138 F.3d 893 (11th Cir 1998) 7,40,44 Lake v Arnold, 112 F.3d 682 (3d Cir 1997) 10

Lau v Nichols, 483 F.2d 791 (9th Cir 1973), rev’d, 414 U.S 563 (1974) 20

Lewis v Casey, 518 U.S 343 (1996) 19

M.L.B v S.L.J., 117 S Ct 555 (1996) 19

Maryland v Wirtz, 392 U.S 183 (1968) 37,38,42 Mills v Maine, 118 F.3d 37 (1st Cir 1997) 8

Mitten v Muscogee County Sch Dist., 877 F.2d 932 (11th Cir 1989), cert denied, 493 U.S 1072 (1990) 9

Oxford House-C v City of St Louis, 77 F.3d 249 (8th Cir.), cert denied, 117 S Ct 65 (1996) 30

Penn Dep’t of Corrections v Yesky, 118 S Ct 1952 (1998) 3

Pierce v King, 918 F Supp 932 (E.D.N.C 1996), aff’d on other grounds, 131 F.3d 136, 1997 WL 770564 (4th Cir Dec 11, 1997), petition for cert Filed (March 10, 1998) (No 97-8592) 3

Plyer v Doe, 457 U.S 202 (1982) 18

Printz v United States, 117 S Ct 2375 (1997) 45

Proyect v United States, 101 F.3d 11 (2d Cir 1996) 39

Ramirez v Puerto Rico Fire Serv., 715 F.2d 694 (1st Cir 1983) 9

Romer v Evans, 517 U.S 620 (1996) 8

v

CASES (continued):

Santiago v New York State Dep’t of Correctional Servs.,

945 F.2d 25 (2d Cir 1991), cert denied,

502 U.S 1094 (1992) 9

School Bd Of Nassau County v Arline, 480 U.S 273

(1987) 24Scott v University of Miss., 148 F.3d 493 (5th Cir 1998) 9Seaborn v Florida, 143 F.3d 1405 (11th Cir 1998) 4,27Seminole Tribe of Florida v Florida, 517 U.S 44

United States v Bishop, 66 F.3d 569 (3d Cir 1995),

cert denied, 516 U.S 1032 (1995) 29United States v Horton, 601 F.2d 319 (7th Cir 1979),

cert denied, 444 U.S 937 (1979) 18United States v Kenney, 91 F.3d 884 (7th Cir 1996) 29United States v Lopez, 514 U.S 549 (1995) 27,29,35,36

United States v Olin Corp., 107 F.3d 1506

(11th Cir 1997) 39United States v Trupin, 117 F.3d 678 (2d Cir 1977),

cert denied, 118 S Ct 699 (1998) 37United States v Wall, 92 F.3d 1444 (6th Cir 1996),

cert denied, 117 S Ct 690 (1977) 37

United States v Wilson, 73 F.3d 675 (7th Cir 1995),

cert denied, 117 S Ct 46 (1996) 29,33,36United States v Zorilla, 93 F.3d 7 (1st Cir 1996) 42United Steelworkers v Weber, 443 U.S 193 (1979) 31Usery v Charleston County Sch Dist., 558 F.2d 1169

(4th Cir 1977) 6

vi

CASES (continued):

West v Anne Arundel County, 137 F.3d 752 (4th Cir 1998),

pet for cert denied, 1998 WL 479777

(U.S Dec 7, 1998) (No 98-266) 45

Westside Community Bd Of Educ V Mergens, 496 U.S 226 (1990) 6

Wickard v Filburn, 317 U.S 111 (1942) 29,38 Williams v Wasserman, 937 F Supp 524 (D Md 1996) 1,2,7 Willis v Dean Witter Reynolds, Inc., 948 F.2d 305 (6th Cir 1991) 31

Yellow Springs Exempted Village Sch Dist Bd Of Ed V Ohio High Sch Athletic Ass’n, 647 F.2d 651 (6th Cir 1981) 19

STATUTES: Age Discrimination in Employment Act (ADEA), 29 U.S.C 621 et seq 30

29 U.S.C 623 38

Americans with Disabilities Act (ADA), 42 U.S.C 12101-12117 44

42 U.S.C 12101 (a)(2) 11,24 42 U.S.C 12101 (a)(3) 13

42 U.S.C 12101 (a)(5) 24

42 U.S.C 12101 (a)(6) 13

42 U.S.C 12101 (a)(7) 12

42 U.S.C 12101 (a)(9) 14,33,40 42 U.S.C 12101 (b)(4) 6,27,32 42 U.S.C 12102 (2)(A) 18

Title I: 42 U.S.C 12111 et seq 33

Title II: 42 U.S.C 12131-12134 1

42 U.S.C 12132 15

42 U.S.C 12134 7

Title III: 42 U.S.C 12181-12189 44

42 U.S.C 12181 (7) 33

Title IV: 47 U.S.C 225-611 44

vii

STATUTES (continued):

Civil Rights Act of 1964,

42 U.S.C 2000e et seq 30Fair Housing Act of 1968,

42 U.S.C 3601 et seq 30Gun-Free School Zones Act of 1990,

H.R Rep No 485, Pt 2, 101st Cong., 2d Sess.(1990) 11,12,40

H.R Rep No 485, Pt 3, 101st Cong., 2d Sess.(1990)

S Rep No 116, 101st Cong., 1st Sess (1989) 11,32,34,40

136 Cong Rec 11,467 (1990) 10,34

BOOKS AND ARTICLES:

Timothy M Cook, The Americans with Disabilities Act:

The Move to Integration, 64 Temp L Rev 393

(1991) 11

Lowell P Weicker, Jr., Historical Background of the

Americans with Disabilities Act,

64 Temp L Rev 387 (1991) 11

REPORTS:

U.S Commission on Civil Rights, Accommodating the

Spectrum of Individual Abilities (1983) 12,13,24

viii

This case was filed by individuals with mental disabilities confined in Maryland State institutions against certain State officials Plaintiffs seek prospective injunctive and other relief, including transfer to community-based care.1 On April 22,

1996, the United States sought leave of this Court to file an amicus brief addressing issues raised by the parties in their respective motions for summary judgment relating to this Court’s interpretation of title II of the Americans with Disabilities Act(“ADA”), 42 U.S.C 12131-12134, and the substantive due process rights of institutionalized persons under the Fourteenth

Amendment Leave was granted pursuant to an Order dated May 16,

1996, and the United States filed its brief on April 22, 1996

In its decision on the issues raised in these motions, see Williams v Wasserman, 937 F Supp 524 (D Md 1996), the Court held, inter alia, that, “* * * while the ADA does not place an affirmative obligation on the state to create or fundamentally alter a program of community-based treatment options, the ADA does oblige the defendants to make those options available to otherwise qualified individuals without regard to the severity orparticular classification * * * of their disabilities.” Id at

530 The Court also cited the Third Circuit’s decision in Helen

L v DiDario, 46 F.3d 325 (3d Cir 1994), with approval for the proposition that “the ADA and its attendant regulations clearly

1/ The Eleventh Amendment is not a bar to this suit because the only defendants in this action are State officials sued in their official capacities for prospective injunctive relief CSX

Transportation v Board of Public Works, 138 F 3d 537, 540-541 (4th Cir 1998) (explaining Ex parte Young, 209 U.S 123 (1908))

define unnecessary segregation as a form of illegal

discrimination against the disabled.” Williams, 937 F.Supp at

530, citing Helen L., 46 F.3d at 333

Following trial on the merits and the submission of trial briefs, defendants, by letter to this Court dated October

post-2, 1998, raised for the first time the question of whether

Congress has the power, under title II of the ADA, to require theStates to provide health-related services to persons with

disabilities in the most integrated setting appropriate, and requested this Court’s permission to submit a memorandum

addressing that question On October 15, 1998, defendants

submitted a supplemental post-trial brief (corrected copy filed October 19, 1998), asserting that Congress lacked power under both the Fourteenth Amendment and the Commerce Clause to impose such a requirement on the States Plaintiffs submitted their reply on November 9, 1998 By letter dated November 5, 1998, theUnited States notified this Court that it intended to file a motion to intervene in this case for the limited purpose of

defending the constitutionality of the ADA and an accompanying brief addressing the defendants’ constitutional arguments We requested permission to file by December 9, 1998, which

permission was granted by marginal ruling dated November 11,

1998 Concurrently with this brief, the United States has filedits motion seeking leave to intervene as of right for the sole purpose of defending the constitutionality of the ADA

Defendants do not oppose our intervention

2

The United States demonstrates below that Congress properly exercised its powers, under both Section 5 of the Fourteenth Amendment and the Commerce Clause, in prohibiting disability-based discrimination by State and local governmental entities under title II of the ADA.

ARGUMENTITITLE II OF THE AMERICANS WITH DISABILITIES ACT

IS A VALID EXERCISE OF CONGRESS’S POWER UNDERSECTION 5 OF THE FOURTEENTH AMENDMENT

Citing the Supreme Court's recent decision in City of Boerne

v Flores, 117 S Ct 2157 (1997), the defendants contend that,

if title II of the ADA is interpreted to require States to

provide health-related services to persons with disabilities in the most integrated setting appropriate, it exceeds Congress’s power to legislate under Section 5 of the Fourteenth Amendment.2 See Defendants’ Supplemental Post-Trial Reply Brief (Defs.’ Br.)

at 2 To date, four courts of appeals have upheld the ADA as

2/ The constitutionality of the ADA is currently before the 4th Circuit in several cases See Amos v The Maryland Department of Safety and Correctional Services, 126 F.3d 589 (4th Cir 1997), vacated, 118 S Ct 2339 (1998) (oral argument held December 4, 1998) and Brown v North Carolina Department of Motor Vehicles,

987 F Supp 451 (E.D.N.C 1997), appeal pending, No 97-2784 (4th Cir.)(oral argument held October 26, 1998) The argument was pressed by defendants, but not passed on, in Pierce v King,

918 F Supp 932 (E.D.N.C 1996), aff'd on the basis of Amos, 131F.3d 136 (Table), 1997 WL 770564 (4th Cir Dec 11, 1997),

petition for cert granted, vacated, and remanded for further consideration in light of Penn Dept of Corrections v Yeskey,

118 S Ct 1952 (1998), (119 S Ct 33) (Oct 5, 1998) The Fourth Circuit stayed Pierce v King, pending Amos The United States has intervened in these cases to defend the

constitutionality of the ADA

3

valid Section 5 legislation See Crawford v Indiana Dep't of Corrections, 115 F.3d 481, 487 (7th Cir 1997) cert denied, 118

S Ct 2340 (1998); Clark v California, 123 F.3d 1267, 1270-1271(9th Cir 1997), cert denied, 118 S Ct 2340 (1998); Coolbaugh

v Louisiana, 136 F.3d 430, 438 (5th Cir.), cert denied, 119 S

Ct 58 (Oct 5, 1998); Kimel v Board of Regents, 139 F.3d 1426,

1433, 1442-1443 (11th Cir 1998); Seaborn v Florida, 143 F.3d

1405, 1407 (11th Cir 1998) We agree with these courts and urgethis Court to follow their well-reasoned decisions.3

Section 5 of the Fourteenth Amendment empowers Congress to enact “appropriate legislation” to “enforce” the Equal ProtectionClause As the Supreme Court explained over a hundred years ago:

Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they

contain, and to secure to all persons the enjoyment of

perfect equality of civil rights and the equal protection ofthe laws against State denial or invasion, if not

prohibited, is brought within the domain of congressional power

Ex parte Virginia, 100 U.S 339, 345-346 (1879) A statute is thus “appropriate legislation” to enforce the Equal Protection Clause if the statute “may be regarded as an enactment to enforcethe Equal Protection Clause, [if] it is 'plainly adapted to that

3/ Whether or not the ADA was validly enacted by Congress under the Fourteenth Amendment has been typically challenged by

defendants as part of the broader question of whether the

abrogation of a State’s Eleventh Amendment immunity contained in the ADA is a valid exercise of Congress’s power under Section 5

of the Fourteenth Amendment See Seminole Tribe of Florida v Florida, 517 U.S 44 (1996) However, as noted above, because plaintiffs here seek only prospective injunctive relief against State officials, the abrogation of Eleventh Amendment immunity isnot an issue

4

end' and [if] it is not prohibited by but is consistent with 'theletter and spirit of the constitution.'” Katzenbach v Morgan,

384 U.S 641, 651 (1966); Abril v Virginia, 145 F.3d 182, 187 (4th Cir 1998) And, contrary to defendants’ apparent view of the law, neither the Fourteenth Amendment itself, nor the SupremeCourt’s opinion in City of Boerne, prohibits Congress from

enacting legislation that provides greater relief than the

44, 59 (1996) A long “line of cases has sanctioned intrusions

by Congress, acting under the Civil War Amendments, into the judicial, executive, and legislative spheres of autonomy

previously reserved to the States.” Fitzpatrick v Bitzer, 427 U.S 445, 455 (1976); see also EEOC v Wyoming, 460 U.S at 243 n.18 Thus, even if this case is narrowly characterized as

addressing the State's care of uninsured and impoverished personswith mental disabilities, there is nothing talismanic about such care that places it outside the legitimate scope of Congress' Fourteenth Amendment power

5

A The ADA Is An Enactment To Enforce The Equal

Protection Clause

Although Congress need not announce that it is legislating pursuant to its Section 5 authority, see Usery v Charleston County Sch Dist., 558 F.2d 1169, 1171 (4th Cir 1977), Congress declared that its intent in enacting the ADA was “to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment * * *, in order to address the major areas of discrimination faced day-to-day by people with

disabilities.” 42 U.S.C 12101(b)(4) While such a declaration

is not dispositive of Congress’s authority, it carries

significant weight “Given the deference due 'the duly enacted and carefully considered decision of a coequal and representativebranch of our Government,'” a court is “not lightly [to] second-guess such legislative judgments.” Westside Community Bd of Educ v Mergens, 496 U.S 226, 251 (1990)

While defendants concede that people with disabilities are protected by the Equal Protection Clause, they suggest (Defs.’

Br at 11-12) that, because classifications on the basis of

disability are not subject to strict scrutiny, Congress has

exceeded its power to protect that class under the Fourteenth Amendment if the ADA is interpreted to require States to provide health-related services to people with disabilities in the “most integrated setting appropriate.” 28 C.F.R 35.130(d).5 However,

5/ The anti-discrimination provision of title II provides that "noqualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities or a public

6

as discussed in detail below, Congress may enact legislation thatprovides greater protection than the Constitution itself

requires

To the extent defendants are attempting to argue, more

broadly, that it is beyond Congress’s power to legislate unless the courts have declared a classification “suspect” or “quasi-suspect,” they are clearly wrong Neither the prohibitions of the Equal Protection Clause nor Congress’s Section 5 authority is

entity, or be subjected to discrimination by any such entity."

42 U.S.C 12132 In 42 U.S.C 12134, Congress directed the

Attorney General to promulgate regulations implementing this general mandate The "integration regulation," relevant here, requires, as one of title II's general prohibitions against

discrimination, that public entities "administer services,

programs, and activities in the most integrated setting

appropriate to the needs of qualified individuals with

disabilities." 28 C.F.R 35.130(d) As we have indicated in an earlier filing in this case, the Department of Justice has taken the consistent position that the "integration regulation" means that "where professionals (with appropriate input) have

determined that community-based services are appropriate for disabled individuals, States must end unnecessary segregation in State-operated institutions and provide community based services for those individuals." Memorandum of the United States in

Support of Plaintiffs' Motion for Partial Summary Judgment on ADAClaims and in Opposition to Defendants' Motion for Summary

Judgment, or in the Alternative, Motion for Summary Judgment at

14

This Court has already agreed, in denying defendants’ Motionfor Summary Judgment, that the Department of Justice’s

regulations are entitled to substantial deference and are

consistent with the purposes of the ADA, see, Williams v

Wasserman, 937 F Supp 524 at 530-31, discussing unnecessary segregation as a form of illegal segregation under title II and its regulations and citing with approval Helen L v DiDario, 46 F.3d 325 (3d Cir 1994), requiring the State of Pennsylvania to make attendant care services available to the plaintiff in her home under the existing home care program See also, L.C by Zimring v Olmstead, 138 F.3d 893 (11th Cir 1998) (addressing title II's integration mandate), pet for cert filed, No 98-536(S Ct Sept 29, 1998)

limited to suspect or quasi-suspect classifications “The

purpose of the equal protection clause of the Fourteenth

Amendment is to secure every person within the State's

jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its

improper execution through duly constituted agents.” Sunday LakeIron Co v Township of Wakefield, 247 U.S 350, 352 (1918) Thus “arbitrary and irrational discrimination violates the Equal Protection Clause under even [the] most deferential standard of review.” Bankers Life & Cas Co v Crenshaw, 486 U.S 71, 83 (1988); see, e.g., Romer v Evans, 517 U.S 620, 631-634 (1996); Mills v Maine, 118 F.3d 37, 46 (1st Cir 1997) (collecting

cases) And, in City of Cleburne v Cleburne Living Center, 473 U.S 432, 450 (1985), the Supreme Court made clear that

government discrimination on the basis of disability is

prohibited by the Equal Protection Clause when it is arbitrary Although a majority declined to deem classifications on the basis

of mental retardation as “quasi-suspect,” it held that this did not leave persons with such disabilities “unprotected from

invidious discrimination.” Id at 446

In affirming Congress’s power to prohibit discrimination against persons with disabilities pursuant to Section 5, the Seventh Circuit explained, “[i]nvidious discrimination by

governmental agencies * * * violates the equal protection clause even if the discrimination is not racial, though racial

discrimination was the original focus of the clause In creating

a remedy against such discrimination [through the ADA], Congress was acting well within its powers under section 5 * * *.”

Crawford, 115 F.3d at 487; accord Clark, 123 F.3d at 1270-1271 This is consistent with the Fourth Circuit’s holding in Arritt v.Grisell, 567 F.2d 1267, 1271 (1977), that the Age Discrimination

in Employment Act (ADEA), 29 U.S.C 621 et seq., is a valid

exercise of Congress’s Section 5 authority, despite the fact thatage is not a suspect classification.6

Courts have reached a similar conclusion in cases involving the Individuals with Disabilities Education Act (IDEA), 20 U.S.C

1400 et seq., which requires “access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.” Board of Educ v.Rowley, 458 U.S 176, 201 (1982) The four courts of appeals to address the question have held that Congress validly exercised its Section 5 authority in enacting the IDEA See Mitten v Muscogee County Sch Dist., 877 F.2d 932, 937 (11th Cir 1989), cert denied, 493 U.S 1072 (1990); Counsel v Dow, 849 F.2d 731,

737 (2d Cir 1988), cert denied, 488 U.S 955 (1988); David D

v Dartmouth Sch Comm., 775 F.2d 411, 421 n.7 (1st Cir 1985),

6/ A majority of the courts of appeals are in accord See, e.g.,Coger v Board of Regents, No 97-5134, 1998 WL 476164, at *5-*11(6th Cir Aug 17, 1998); Scott v University of Miss., 148 F.3d

493, 501-503 (5th Cir 1998); Keeton v University of Nev Sys.,

No 97-17184, 1998 WL 381432, at *2-*3 (9th Cir July

10, 1998); Goshtasby v Board of Trustees, 141 F.3d 761, 770-772 (7th Cir 1998); Ramirez v Puerto Rico Fire Serv., 715 F.2d 694,698-700 (1st Cir 1983); Arritt v Grisell, 567 F.2d 1267, 1271 (4th Cir 1977); see also Santiago v New York State Dep't of Correctional Servs., 945 F.2d 25, 30 (2d Cir 1991) (dictum), cert denied, 502 U.S 1094 (1992)

cert denied, 475 U.S 1140 (1986); Crawford v Pittman, 708 F.2d

1028, 1036-1038 (5th Cir 1983); see also Lake v Arnold, 112 F.3d 682, 688 (3d Cir 1997) (finding that animus against people with mental retardation constitutes “'class-based invidiously discriminatory' motivation” for purposes of 42 U.S.C 1985(3))

Like these statutes, the ADA is legislation to enforce the Equal Protection Clause As Representative Dellums explained during the enactment of the ADA, “we are empowered with a specialresponsibility by the 14th amendment to the Constitution to

ensure that every citizen, not just those of particular ethnic groups, not just those who arguably are 'able-bodied,' not just those who own property but every citizen shall enjoy the equalprotection of the laws.” 136 Cong Rec 11,467 (1990); see also

id at 11,468 (remarks of Rep Hoyer)

B The ADA Is Plainly Adapted To Enforcing The Equal

Protection Clause

The defendants’ central argument appears to be that the ADA

is not validly enacted pursuant to the Fourteenth Amendment

because it provides protection that is outside the scope of the Fourteenth Amendment But the Supreme Court recently addressed the question of the permissible scope of a statute that is

“plainly adapted” to enforcing the Fourteen Amendment and

concluded that even statutes that prohibit more than the Equal Protection Clause itself prohibits can be “appropriate remedial measures” when there is “a congruence between the means used and the ends to be achieved.” City of Boerne, 117 S Ct at 2169

As the Boerne Court stated, “[t]he appropriateness of remedial

measures must be considered in light of the evil presented.” Ibid Therefore, this Court must examine both the extent and nature of the discrimination faced by individuals with

disabilities, and the appropriateness of the relief crafted by Congress when it enacted title II of the ADA Although it was not required to do so, when Congress considered the ADA it

created an extensive and detailed legislative record of the

discrimination experienced by Americans with disabilities

1 Congress Found That Discrimination Against People With

Disabilities Was Severe And Extended To Every Aspect OfSociety

In enacting the ADA, Congress made express findings about the status of people with disabilities in our society and

determined that they were subject to continuing “serious and pervasive” discrimination that “tended to isolate and segregate individuals with disabilities.” 42 U.S.C 12101(a)(2).7 Evidencebefore Congress demonstrated that persons with disabilities were sometimes excluded from public services for no reason other than distaste for or fear of their disabilities See S Rep No 116,101st Cong., 1st Sess 7-8 (1989) (citing instances of

discrimination based on negative reactions to sight of

disability) (Senate Report); H.R Rep No 485, Pt 2, 101st Cong., 2d Sess 28-31 (1990) (same) (House Report) Indeed, the

7/ See also Timothy M Cook, The Americans with Disabilities Act:The Move to Integration, 64 Temp L Rev 393, 393-394 nn.1-4,

412 n.133 (1991); Lowell P Weicker, Jr., Historical Background

of the Americans with Disabilities Act, 64 Temp L Rev 387, 387-389 (1991) (discussing other laws enacted to redress

discrimination against persons with disabilities)

United States Commission on Civil Rights, after a thorough survey

of the available data, documented that prejudice against persons with disabilities manifested itself in a variety of ways,

including “reaction[s] of aversion,” reliance on “false”

stereotypes, and stigma associated with disabilities that lead topeople with disabilities being “thought of as not quite human.” U.S Commission on Civil Rights, Accommodating the Spectrum of Individual Abilities, 23-26 (1983); see also Senate Report,

supra, at 21 The negative attitudes, in turn, produced fear andreluctance on the part of people with disabilities to participate

in society See Senate Report, supra, at 16; House Report,

supra, at 35, 41-43; Cook, supra, at 411 Congress thus

concluded that persons with disabilities were “faced with

restrictions and limitations resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society.”

42 U.S.C 12101(a)(7)

The decades of ignorance, fear and misunderstanding created

a tangled web of discrimination, resulting in and being

reinforced by isolation and segregation The evidence before Congress demonstrated that these attitudes were linked more

generally to the segregation of people with disabilities See Senate Report, supra, at 11; U.S Commission on Civil Rights, supra, at 43-45 This segregation was in part the result of government policies in “critical areas [such] as employment, housing, public accommodations, education, transportation,

communication, recreation, institutionalization, health services,voting, and access to public services.” 42 U.S.C 12101(a)(3) (emphasis added) Evidence before Congress showed that

government policies and practices, in tandem with similar privatediscrimination, produced a situation in which people with

disabilities were largely poor, isolated, and segregated As Justice Marshall explained, “lengthy and continuing isolation of [persons with disabilities] perpetuated the ignorance, irrationalfears, and stereotyping that long have plagued them.” Cleburne,

473 U.S at 464; see also U.S Commission on Civil Rights, supra,

at 43-45 This evidence provided an ample basis for Congress to conclude that government discrimination was a root cause of

“people with disabilities, as a group, occupy[ing] an inferior status in our society, and [being] severely disadvantaged

socially, vocationally, economically, and educationally.” 42 U.S.C 12101(a)(6)

2 The ADA Is A Proportionate Response By Congress To

Remedy And Prevent The Pervasive Discrimination It Discovered

Section 5 of the Fourteenth Amendment gives Congress broad power to address what it found to be the “continuing existence ofunfair and unnecessary discrimination and prejudice [that] deniespeople with disabilities the opportunity to pursue those opportunities for which our free society is justifiably famous.” See 42 U.S.C 12101(a)(9) “It is fundamental that in no organ

of government, state or federal, does there repose a more

comprehensive remedial power than in the Congress, expressly charged by the Constitution with competence and authority to enforce equal protection guarantees.” Fullilove v Klutznick,

448 U.S 448, 483 (1980) (opinion of Burger, C.J.)

After extensive investigation prior to enacting the ADA, Congress found that the exclusion of persons with disabilities from public facilities, programs, and benefits was a result of past and on-going discrimination See 42 U.S.C 12101 In the ADA, Congress sought to remedy the effects of past discriminationand prevent like discrimination in the future by mandating that

“qualified handicapped individual[s] must be provided with

meaningful access to the benefit that the [entity] offers.” Alexander v Choate, 469 U.S 287, 301 (1985) (emphasis added).8 Thus, title II of the ADA requires that "no qualified individual

8/ Alexander dealt with Section 504 of the Rehabilitation Act The Fourth Circuit, however, has held that the ADA imposes

substantive requirements similar to Section 504 See, e.g., Doe v University of Md Med Sys Corp., 50 F.3d 1261, 1264-1265n.9 (4th Cir 1995)

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with a disability shall, by reason of such disability, be

excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity." 42 U.S.C

12132 And, in response to the widespread isolation and

segregation identified by Congress and the consequent harm it discovered, regulations implementing title II of the ADA require that "[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R 35.130(d)(emphasis added) While this requirement imposes some burden on the States, that burden is not unlimited For example,regulations implementing title II of the ADA do not require

public entities to make reasonable modifications to policies, practices, or procedures if "the public entity can demonstrate that making the modifications would fundamentally alter the

nature of the service, program, or activity." 28 C.F.R

35.130(b)(7)

3 In Enacting The ADA, Congress Was Redressing

Constitutionally Cognizable Injuries

In enacting the ADA, Congress was acting within the

constitutional framework that has been laid out by the Supreme Court in cases such as City of Cleburne As discussed above, theEqual Protection Clause prohibits invidious discrimination, that

is, “a classification whose relationship to [a legitimate] goal

is so attenuated as to render the distinction arbitrary or

irrational.” Cleburne, 473 U.S at 446 In Cleburne, the

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Supreme Court unanimously declared unconstitutional as invidious discrimination a decision by a city to deny a special use permit for the operation of a group home for people with mental

retardation A majority of the Court recognized that “through ignorance and prejudice [persons with disabilities] 'have been subjected to a history of unfair and often grotesque

mistreatment.'” Id at 454 (Stevens, J., concurring); see id at

461 (Marshall, J., concurring in the judgment in part) The Court acknowledged that “irrational prejudice,” id at 450,

“irrational fears,” id at 455 (Stevens, J.), and “impermissible assumptions or outmoded and perhaps invidious stereotypes,” id

at 465 (Marshall, J.), existed against people with disabilities

in society at large and sometimes inappropriately infected

government decision making

While a majority of the Court declined to deem

classifications based on disability as “suspect” or

“quasi-suspect,” it elected not to do so, in part, because it did not want to unduly limit legislative solutions to problems faced by the disabled The Court reasoned that “[h]ow this large and diversified group is to be treated under the law is a difficult and often technical matter, very much a task for legislators guided by qualified professionals.” Id at 442-443 It

specifically noted with approval legislation such as Section 504 and IDEA, which aimed at protecting persons with disabilities, and openly worried that requiring governmental entities to

justify their efforts under heightened scrutiny might “lead

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[governmental entities] to refrain from acting at all.” Id at

444

Nevertheless, the Court did affirm that “there have been andthere will continue to be instances of discrimination against [persons with mental retardation] that are in fact invidious, andthat are properly subject to judicial correction under

constitutional norms,” id at 446, and found the actions at issue

in that case unconstitutional In doing so, it articulated

several criteria for making such determinations in cases

involving disabilities First, the Court held that the fact thatpersons with mental retardation were “indeed different from

others” did not preclude a claim that they were denied equal protection; instead, it had to be shown that the difference was relevant to the “legitimate interests” furthered by the rules

Id at 448 Second, in measuring the government's interest, the Court did not examine all conceivable rationales for the

differential treatment of persons with mental retardation;

instead, it looked to the record and found that “the record [did]not reveal any rational basis” for the decision to deny a specialuse permit Ibid.; see also id at 450 (stating that “this

record does not clarify how * * * the characteristics of [people with mental retardation] rationally justify denying” to them whatwould be permitted to others) Third, the Court found that “merenegative attitudes, or fear, unsubstantiated by factors which areproperly cognizable * * * are not permissible bases” for imposingspecial restrictions on persons with disabilities Id at 448 Thus, as the Court recognized, the Equal Protection Clause of its

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own force proscribes treating persons with disabilities

differently when the government has not put forward evidence justifying the difference or where the justification is based on mere negative attitudes

The Supreme Court has also recognized that the principle of equality is not an empty formalism divorced from the realities ofday-to-day life, and thus the Equal Protection Clause is not limited to prohibiting unequal treatment of similarly situated persons The Equal Protection Clause also guarantees “that

people of different circumstances will not be treated as if they were the same.” United States v Horton, 601 F.2d 319, 324 (7th Cir 1979), cert denied, 444 U.S 937 (1979) (quoting Ronald D Rotunda & John E Nowak, Treatise on Constitutional Law 520

(1978)) By definition, persons with disabilities have “a

physical or mental impairment that substantially limits one or more * * * major life activities.” 42 U.S.C 12102(2)(A) Thus,

as to those life activities, “the handicapped typically are not similarly situated to the nonhandicapped.” Alexander, 469 U.S

at 298 The Constitution is not blind to this reality and

instead, in certain circumstances, requires equal access rather than simply identical treatment While it is true that the

“'Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same,'” Plyler v Doe, 457 U.S 202, 216 (1982), it is also true that “[s]ometimes the grossest discrimination can lie in treating

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things that are different as though they were exactly alike.” Jenness v Fortson, 403 U.S 431, 442 (1971).9

Thus, there is a basis in constitutional law for recognizingthat discrimination exists not only by treating people with

disabilities differently for no legitimate reason, but also by treating them identically when they have recognizable

differences As the Sixth Circuit has explained in a case

involving gender classifications, “in order to measure equal opportunity, present relevant differences cannot be ignored When males and females are not in fact similarly situated and when the law is blind to those differences, there may be as much

a denial of equality as when a difference is created which does not exist.” Yellow Springs Exempted Village Sch Dist Bd of

9/ In a series of Supreme Court cases beginning with Griffin v Illinois, 351 U.S 12 (1956), and culminating in M.L.B v

S.L.J., 117 S Ct 555 (1996), the Court has held that principles

of equality are sometimes violated by treating unlike persons alike In these cases, the Supreme Court has held that a State violates the Equal Protection Clause in treating indigent partiesappealing from certain court proceedings as if they were not indigent Central to these holdings is the acknowledgment that

“a law nondiscriminatory on its face may be grossly

discriminatory in its operation.” 117 S Ct at 569 (quoting Griffin, 351 U.S at 17 n.11) The Court held in these cases that even though States are applying a facially neutral policy bycharging all litigants equal fees for an appeal, the Equal

Protection Clause requires States to waive such fees in order to ensure equal “access” to appeal Id at 560 Nor is it

sufficient if a State permits an indigent person to appeal

without charge, but does not provide free trial transcripts TheCourt has declared that the State cannot “extend to such indigentdefendants merely a 'meaningless ritual' while others in better economic circumstances have a 'meaningful appeal.'” Id at 569 n.16 (quoting Ross v Moffitt, 417 U.S 600, 612 (1974)); see also Lewis v Casey, 518 U.S 343, 356-357 (1996) (holding that State has not met its obligation to provide illiterate prisoners access to courts simply by providing a law library)

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